Session 10 Legal drafting II - Substance of a legal act, design of final provisions

1. Session 10 Legal drafting II - Substance of a legal act, design of final provisions

2. What shall laws regulate in essence? • Who– is the addressee of a provision? (which group of natural / legal persons or institution etc.) • What – shall or may the addressee of a provision do? • When – is the addressee required (or allowed) to do something? • How – is the addressee required / mandated (discretion) to act? • Public laws shall primarily regulate rights and obligations (corresponding) and procedures • Aspects related to why (explanation, motivation) are normally not to be addressed in a law but in legal commentaries, explanations, guidelines (or in preamble) • Try to avoid describing anything in law ! There shall be no “is”

3. Example (on obligation) • Article 13 draft Railway Law reads: • Rail transport infrastructure (hereinafter: infrastructure) is a set of objects [list follows] • Infrastructure by operating modes is divided into categories, technical requirements for operation of which shall be approved by the central executive authority that ensures the development and implementation of state policy in the field of rail transport • Infrastructure and its facilities must be maintained by the infrastructure operator in a technically sound condition that ensures the safety and continuity of transportation process What do you think of the wording in Article 13?

4. Example – logic structure of a permit law The logic structure for the introduction of a coherent permitting / licensing and control system could look as follows: Comprehensive permit (with provisions regulating the requirement to obtain such permit for certain activities, the permit conditions, the scope and legal effect of the permit (and its effect to other permits) Procedural aspectsfor obtaining such permit (application, review of application, participation of other authorities and the public, permit granting) Withdrawal, reconsideration and updating of permit conditions (when, why, how) Simplified forms of the permit (which should make reference to chapters 1-3 if certain aspects regulated there are also applicable here) Permit compliance control (monitoring, inspections, record keeping, orders in case of non-compliance, sanctions)

5. Competence norms • Specific Articles on “competences” have a number of legal disadvantages: • Articles throughout a law should regulate competences anyway “who is in charge?” – so why Article on “competences”? • Long lists do not make a law more readable – and key competences may be forgotten • Competences are often changed • Main mistake in Ukrainian laws: lengthy competence lists plus open clause “other tasks as foreseen by legislation” (example: Article 4 of Law on Natural Gas Market list 29 (!) principal tasks of the regulator plus “to perform other functions as prescribed by the law”) • In most EU MS laws implementing competences are NOT at all regulated in laws but in by-laws as these are more dynamic • # ------- Extract from Article 2 Natural Gas Market Law “Decisions (measures) of authorities adopted in pursuance of the rules of the present Law shall comply with the principles of proportionality, transparency, and non-discrimination.” (principles are also explained) What do you think? Why are the principles quoted?

6. Good competence clause example Example 1: The central public administration authority shall be in charge of tasks and activities in all areas of XX in accordance with the provisions of this Act, unless specific competences have been delegated explicitly by legislation or based on legislation to other competent authorities on national, regional or local level. Example 2: The central public administration authority shall be responsible for control of compliance with the regulations referred to / requirements set in Article XX . They have the particular task of doing xyz .

7. Violation and sanction clauses • Provisions on administrative violations and sanctions mirror concrete obligations of an Act not complied with by their addressee. • Such provisions must be phrased as precisely as possible in accordance with the principle of legality – recall precisely the norm violated preferably by means of reference to the number of the article / paragraph (better than just wording) and state scope of the sanction • They should be regulated at the end of the substantive part of a law – but never outside the law • Violations may be grouped according to scope of sanction (severeness) or type of violation • Sanctions should always be proportional, effective and dissuasive

8. Violation and sanction clauses • Pay attention to: • Forms of violation (negligence, intent, repeated) which should influence the height of a fine – unless the fine is absolute • Who has the right to fine? • What is relation to civil / administrative liability (damage compensation)? • Can a legal person commit a violation and be sanctioned? • As regards the level of the fine, some discretion should be left to sanctioning institution “up to XX ” to be decided case-by case in accordance with proportionality aspects

9. Examples for violations / sanctions in Ukrainian laws (Extract from Article 59 Law on Natural Gas Market): (2) The following, inter alia, constitute violations on the natural gas market: […] (3) In case of a violation on the natural gas market, subjects of the natural gas market shall be subject to the following sanctions: 1) a warning on the need to eliminate the violation; 2) a fine; 3) suspension of a license; 4) annulment of a license. (5) In determining sanctions for violations specified in the present Article the Regulator shall take into account the seriousness and duration of the violation, consequences of the violation on interests of the natural gas market. What do you think of these provisions?

10. Example for violations / sanctions clause • Extract from Article 38 draft Public Procurement Law: Members of the contracting entity’s tender committee, authorized person(s), members of the Complaint Review Entity, officers (officials) of the Authorized Agency, officers (officials) of authorities in charge of the treasury services (servicing bank) shall be liable in accordance with the laws of Ukraine for the violation of requirements of this Law and regulations developed pursuant to this Law • Extract from draft Law on amendments to Law on State market surveillance et al. – amendments to Article 44 (1): Liability for violation of the requirements of this Law shall be set by this and other laws of Ukraine What do you think of these provisions?

11. Final provisions • Transitional provisions • lay down the procedure for the transition from the previous legal regime to the new one, for instance … • if specific rules will be in force later then the rest of the legal Act • if certain rules apply to existing / abolished / newly created institutions only • Example from Law on Natural Gas Market (Chapter VII): • The present Law shall enter into force as of the day following the day of its promulgation but shall be effective as of 1 October 2015, except for: • item 5) of para2 of Article 22, Articles 23-31, which apply as of 1 April 2016; • item 3) of para 2 of Article 38, Article 39, which apply as of 1 January 2016. • Para 6 of Article 11 of the present Law shall expire on 1 April 2017.

12. Final provisions • Implementation requirements – contain provisions for … • adopting necessary implementation legislation • necessary amendments of existing legislation (“legal package approach”) • shall be very precise (legality principle) • Repeal provisions • specify laws, or provisions of laws, that are repealed and cease to have effect (normally on the entry into force of the law) • give a precise reference to a law, or provision of a law, that is to be repealed or amended

13. Final provisions • Entry into force provision • by date or • by making reference to its publication (optional plus periodic approach) • Expiry provisions: when it is known that the law / provisions of the law are only applicable for a certain period of time • Annexes • may be done in the form of drawings, charts, tables and technical provisions • form an integral part of the Act • Are very useful and important and improve readability and applicability of an Act